Transgender Rights: An Evolving Landscape

Here's an outline of some recent milestones and recommendations of what employers should know in order to foster a safe and legally compliant work space for LGBT employees.

By Mark A. Konkel, Barbara Hoey|September 02, 2016 at 06:17 AM

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It was just a little over one year ago that the Supreme Court of United States ruled that gay people had the legal right to marry, and that those marriages had to be recognized by every state in the union in Obergefell v. Hodges.

Since then, we have seen a groundswell of legal developments in the rights of gay and transgender people, as we bear witness to the civil rights movement of our lifetime. In this article, we outline some recent milestones and recommend what employers should know in order to foster a safe and legally compliant work space for LGBT employees.

There is no federal law which prohibits discrimination against gay or transgender people. The status of being gay or transgender is not explicitly covered in Title VII of the Civil Rights Act.

In addition, the condition of ‘gender dysphoria’, which many transgender people suffer from, is not a covered “disability” under the Americans With Disabilities Act or the Family Medical Leave Act. Over the years, various laws have been proposed to protect these rights, which have stalled in Congress.

However, given the stance that President Obama, the EEOC, and many federal courts have taken on this issue, one might wonder whether we need that legislation – as there seems no doubt that these agencies and courts have made it their mission to promote the rights of the LGBT community. Let’s look briefly at just some of the legal developments just in the past few years.

The EEOC’s strategic enforcement plan for 2012-2016 identified the protection of gay and transgender people as a “national priority.” Then, in 2012, in the landmark case Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995, the EEOC took the position that discrimination against a job applicant because of her transgender status was a form of gender discrimination, prohibited under Title VII.

Fast forward to April 2015, when President Obama issued Executive Order 13672, which made employment discrimination against transgender people illegal for federal contractors.

Developments sped up in 2016. In April 2016, the U.S. Court of Appeals for the Fourth Circuit ruled that a school must treat transgender students consistent with their gender identity – meaning that the school had to allow a transgender male to use the boys’ restroom.

The Grimm Court explicitly rejected the school board’s position, that allowing transgender students to use the bathroom matching their gender identity would undermine privacy or safety of the other students: “We note that the record is devoid of any evidence tending to show that G.G.’s use of the boys’ restroom creates a safety issue.”

The Grimm case is now headed for the Supreme Court. Just weeks ago, the Fourth Circuit voted to deny the School Board’s bid to stay the case while appeals to the U.S. Supreme Court.

At the same time, many “bathroom bills” were being introduced around the country – including in North Carolina the infamous “H.B. 2”, which has come under withering criticism from many fronts. The law requires public agencies in North Carolina to restrict access to bathrooms to individuals of the same “biological sex” and prohibits public agencies from permitting transgender individuals to use bathrooms that correspond with their gender identity. The law also repeals local anti-discrimination ordinances.

In May the U.S. Department of Justice and the State of North Carolina exchanged federal lawsuits concerning the legality of “H.B. 2”. First, the state filed a lawsuit seeking a determination that H.B. 2 does not violate federal law. Later the same day, the DOJ filed its own lawsuit charging North Carolina with violations of three federal statutes, including Title VII.

Attorney General Loretta Lynch delivered strong remarks, comparing the North Carolina law to the Jim Crow laws, describing it as “state-sponsored discrimination against transgender individuals.” She stated “we see you; we stand with you; and we will do everything we can to protect you going forward.”

Also in April, the Obama administration published its recommendations that schools give transgender students access to the restroom of the gender they ‘identify’ with, which may not be the same as their biological gender.

Then in May, the EEOC issued explicit “Bathroom” guidance, giving employers a further strong indication of where the agency is leaning when it comes to enforcement of LGBT rights in the workplace. The EEOC makes clear that denying an employee “equal access to a common restroom – corresponding to that employee’s gender identity – is a form of sex discrimination.”

It further specified that:

The employer cannot condition use of that bathroom on proof that the employee had surgery.

The employer cannot offer the transgender employee access to a single sex or private bathroom.

Differences between state and federal law cannot be used as a basis to discriminate against LGBT workers.

Last, the EEOC made clear that an employer cannot “accommodate” the beliefs of other employees, who may not be comfortable with this: “Supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”

In June, the EEOC reported on the settlement of a Maryland employer have settled a landmark sexual orientation discrimination case, EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. No. 1:16-cv-00595-CCB (D. Md. filed March 1, 2016, settled June 28, 2016). The plaintiff there alleged that she was harassed by her supervisor because of her sexual orientation.

Pallet Companies will pay $202,000 to settle the case. The settlement also provides that the employer will strengthen its discrimination policies and develop an employee training program that has a section on LGBT workplace issues.

The EEOC clearly is not finished. In early July, the EEOC filed yet another case against Bojangles Restaurant, in North Carolina, alleging discrimination against a transgender female employee.

According to that complaint, the employee was harassed and told he “needed to pray” and was then fired after complaining of the harassment. EEOC v. Bojangles Restaurants, Inc. No. 5:16-cv-00654-BO (E.D. N.C. filed July 6, 2016).

The EEOC also has hit Rent-A-Center East Inc. with a lawsuit in Illinois, alleging the company fired a transgender employee after she informed her supervisors that she intended to transition from male to female. EEOC v. Rent-A-Center East, Inc. No. 2:16-cv-02222, (C.D. Ill. filed July 18, 2016).

The EEOC said that supervisors at the Rent-A-Center store in Rantoul, Illinois, fired Megan Kerr in 2014 after she informed them she was transgender. “The effect of the practices … has been to deprive Kerr of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex,” the complaint said.

The Maryland settlement, the pending Pennsylvania case, and this new lawsuit are a continuing signal of the EEOC’s expansive view of Title VII and its aggressive enforcement of rights for gay and transgender employees. Currently, there are 22 states that have statewide laws prohibiting discrimination in employment based on an individual’s sexual orientation. However, the EEOC’s position creates a national standard.

What should an employer do?

1. You must educate your managers and employees.

Make them aware that the company will not condone poor treatment of gay or lesbian employees, and that they must be sensitive to the needs of transgender employees.

If an employee identifies as transgender, make sure that a manager brings this to the attention of senior management and Human Resources, so that the company can consider carefully how it is going to respond. Enlist outside legal assistance, as needed. More importantly, open a line of communication with the employee. No one can offer pat answers as to how to handle this sensitive issue, but having an open dialogue with the employee (and his/her manager) will lead to a better outcome.

If an employee is transitioning, communication with that employee and his/her peers is key. How does the employee want to announce the transition? How does the employee want to be addressed? Will there be a name change? How should other workers be informed?

The EEOC is now crystal clear on this bathroom issue: the transgender employee must be given access to the restroom of their chosen gender. It does not matter if there has been surgery. Again, communication with the employee and candid discussions with other staff will be crucial in getting through this potentially difficult issue.

Given our times, most employees are much more open and accepting of colleagues with different lifestyles. Thus, with some frank discussion and open lines of communication, most will be accepting of LGBT colleagues.

The EEOC and many courts have made clear that employees who are not accepting, under federal law, are engaging in discrimination. Put simply, no employer should tolerate discrimination against the LGBT community, any more than it would tolerate discrimination based on gender or race or any other protected group.

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